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Kerala High Court
Sajeev Raghavan vs Ramachandran Nair on 3 July, 2025
2025:KER:48794
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
RSA NO. 506 OF 2021
AGAINST THE JUDGMENT AND DECREE DATED 05.11.2020 IN AS
NO.297 OF 2006 OF THE ADDITIONAL DISTRICT COURT,
KOTTAYAM ARISING OUT OF THE JUDGMENT AND DECREE DATED
23.09.2006 IN OS NO.346 OF 2002 OF THE ADDITIONAL SUB
COURT,KOTTAYAM
APPELLANT/APPELLANT NO.3/NOT PARTY:
SAJEEV RAGHAVAN
AGED 47 YEARS, S/O.RAGHAVAN, ANAKKALLUMKAL
HOUSE, KOZHA KARA, KURAVILANGADU, KOTTAYAM
PIN - 686 640 (WRONGLY STATED AS
ANAKKATHARAYIL HOUSE IN THE JUDGMENT AND
DECREE OF THE LOWER APPELLATE COURT)
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SRI.MANU VYASAN PETER
SMT.B.ANUSREE
RESPONDENTS/RESPONDENTS 2 TO 13 AND APPELLANTS 1 AND
2/DEFENDANTS 3 TO 5, LRS OF PLAINTIFF AND DEFENDANTS 1
AND 2:
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1 RAMACHANDRAN NAIR
AGED 64 YEARS, S/O.KESAVAN NAIR,
POONITHURA HOUSE, PADINJATTUM BHAGOM KARA,
ATHIRAMPUZHA VILLAGE, KOTTAYAM - 686 562
2 SATHY K. NAIR
AGED 59 YEARS, S/O.RAMACHANDRAN NAIR,
POONITHURA HOUSE, PADINJATTUM BHAGOM KARA,
ATHIRAMPUZHA VILLAGE, KOTTAYAM - 686 562
3 RAJAPPAN PILLAI
AGED 59 YEARS, S/O.RAGHAVAN PILLAI,
MARUKKATTIL HOUSE, KIZHAKKUM BHAGOM KARA,
ETTUMANOOR VILLAGE, KOTTAYAM - 686 631
4 SEBASTIAN G. PILLAI
AGED 74 YEARS, S/O.DEVASSIA, VARADAKUZHIYIL
HOUSE, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA
VILLAGE, KOTTAYAM 686 562, NOW RESIDING AT 201
PLAZA VERDA DR APT, #2206, HOUSTON TX 77038,
USA.
5 V.S.ISSAC
AGED 70 YEARS, S/O.DEVASSIA, VARADAKUZHIYIL
HOUSE, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA
VILLAGE, KOTTAYAM 686 562, NOW RESIDING AT 201
PLAZA VERDA DR APT, #2206, HOUSTON TX 77038,
USA.
6 V.S.SEBASTIAN
AGED 67 YEARS, S/O.DEVASSIA, VARADAKUZHIYIL
HOUSE, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA
VILLAGE, KOTTAYAM 686 562, NOW RESIDING AT 201
PLAZA VERDA, DR APT, #2206, HOUSTON TX 77038,
USA.
7 ANNAMMA THOMAS
AGED 69 YEARS, D/O.DEVASSIA, VARADAKUZHIYIL
HOUSE, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA
VILLAGE, KOTTAYAM - 686 562
8 MARY KUTTY V.S.
AGED 65 YEARS, D/O.DEVASSIA, VARADAKUZHIYIL
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HOUSE, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA
VILLAGE, KOTTAYAM - 686 562
9 ELSAMMA CHERIAN
AGED 71 YEARS, W/O.V.S.CHERIAN PANICKER,
VARADAKUZHIYIL HOUSE, (THARAPPEL HOUSE),
PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA VILLAGE,
KOTTAYAM - 686 562
10 ANOSH CHERIAN
AGED 42 YEARS, S/O.V.S.CHERIAN PANICKER,
VARADAKUZHIYIL HOUSE, (THARAPPEL HOUSE),
PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA VILLAGE,
KOTTAYAM - 686 562
11 HARNY CHERIAN
AGED 39 YEARS, D/O.V.S.CHERIAN PANICKER,
VARADAKUZHIYIL HOUSE, (THARAPPEL HOUSE),
PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA VILLAGE,
KOTTAYAM - 686 562
12 BABY
AGED 61 YEARS, S/O.THOMMAN, PULAYARUTHOTTATHIL
HOUSE, KALTHOORU KARA, KALATHOORU P.O.,
KURAVILANGADU, MEENACHIL TALUK,
KOTTAYAM - 686 633
13 ROSILY
AGED 61, W/O.BABY, PULAYARUTHOTTATHIL HOUSE,
KALTHOORU KARA, KALATHOORU P.O.,
KURAVILANGADU, MEENACHIL TALUK,
KOTTAYAM - 686 633
14 JINCY
AGE NOT KNOWN TO THE APPELLANT, W/O.JERRAD,
THARAPPEL HOUSE, ATHIRAMPUZHA P.O., ETTUMANOOR
NOW RESIDING AT PAYYAPPALLIIYIL HOUSE,
KORATTI P.O., CHALAKKUDY, THRISSUR - 680 308
BY ADVS.
SHRI.R.S.KALKURA, FOR R4 AND R6
SHRI.P.BABU KUMAR, FOR R12 AND R13
SRI.R.SUNIL KUMAR, FOR R14
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SRI.P.YADHU KUMAR, FOR R12 AND R13
SMT.SWETHA K.S.
SMT.KEERTHI JAYAKUMAR
SMT.A.SALINI LAL, FOR R14
SHRI.M.S.KALESH, FOR R4 AND R6
SRI.HARISH GOPINATH, FOR R4 AND R6
SMT.R.BINDU, FOR R4 AND R6
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 03.07.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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EASWARAN S., J
--------------------------------
R.S.A No.506 of 2021
-------------------------------
Dated this the 3rd day of July, 2025
JUDGMENT
The appellant is not a party to the suit, but,
however, was impleaded as additional 3rd appellant
before the Lower Appellate Court pursuant to the orders
passed by this Court in FAO No.319 of 2012 and O.P.(C)
No.3176 of 2012 dated 01.07.2019.
2. The brief facts necessary for the disposal of the
appeal are as follows:-
The 1st respondent in A.S No.297/2006 on files of the
Additional District Court-IV, Kottayam, filed a suit for
declaration of title and injunction. According to the 1 st
respondent (in A.S No.297/2006)/ plaintiff the plaint
schedule property originally belongs to her by virtue of a
gift deed No.2177/1979 of her deceased husband. The 2 nd
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defendant is the daughter of the plaintiff and the 1 stdefendant is the husband of the 2 nd defendant. The 2nd
defendant had misled the plaintiff and in the guise of
execution of a mortgaged deed for an amount of
Rs.50,000/-, got a sale deed executed in favour of her
husband. According to the plaintiff, the sale deed dated
25.11.2000(Ext.A4) is vitiated as she was not made
aware of the exact nature of the document. In short, a
case of misrepresentation of the character of the
document is projected. In support of her claim Exts.A1 to
A4 were produced and PW1 and PW2 were examined.
PW1 being the plaintiff herself and PW2 is her son. The
defendants 1 and 2 contested the suit and according to
the defendants, the present suit for declaration of title
and injunction is not maintainable, since, between the
plaintiff and her son Jerard were defendants in O.S
No.210/2002 filed before the Munsiff Court, Ettumanoor,
and by the judgment and decree dated 07.03.2003, both
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the plaintiff and her son were injuncted from obstructing
the defendants’ possession over the plaint schedule
property. DW1 was examined and Exts.B1 to B5 were
marked, on behalf of the defendants and Ext.C1, C1(a)
and C1(b) were marked as court exhibits. On the basis of
the rival pleadings, the trial court framed the following
issues:-
1. Whether the sale deed No.4792/00 is liable
to be declared as void?
2. Whether the declaration sought for is
allowable?
3 Whether the injunction sought for is
allowable?
4. Reliefs and costs.
3. On appreciation of the oral and documentary
evidence, the trial court came into conclusion that the
case projected by the plaintiff as regards the
misrepresentation of the character of the document was
established. Therefore, the trial court proceeded to
decree the suit, declaring the plaintiff’s title over the
plaint schedule property and restraining the defendants
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from trespassing into the plaint schedule property. The
original defendants filed an appeal against the judgment
and decree of the trial court as A.S No.297/2006 on the
files of the Additional District Court-IV, Kottayam. During
the pendency of the appeal, on 18.04.2007, the
defendants 1 and 2 / appellants in A.S No.297/2006
before the First Appellate Court, transferred the right title
and interest over the plaint schedule property in favour of
the appellant herein. On 07.11.2009, the appeal was
dismissed for default. The appellant herein filed an
application for restoration and impleading as an
additional 3rd appellant, which was dismissed by the First
Appellate Court. As against the dismissal of the
application for impleading, O.P.(C) No.3176/2012 was
filed and as against the order refusing to restore the
appeal FAO No.319/2012 was filed. This Court by
judgment dated 01.07.2019, set aside the orders passed
by the First Appellate Court and impleaded the appellant
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rd
as the 3 additional appellant in A.S No.297/2006 and
directed the District Court to re-admit the appeal and
dispose of the same in accordance with law. The parties
were directed to appear before the Court on 05.08.2019.
In pursuant to the said order, the parties appeared before
the Additional District Court-IV and the appeal was
considered on merits and by judgment dated 05.11.2020,
the appeal was dismissed and hence the present appeal.
4. Heard Shri.P.B.Krishnan, the learned Senior
Counsel appearing for the appellant assisted by
Shri.P.B.Subramanyan, Shri.R.S.Kalkura, the learned
counsel appearing for respondents 4 and 6, Shri.Sunil
Kumar, the learned counsel appearing for the 14 th
respondent and Shri.P.Babu Kumar, the learned counsel
for respondents 12 and 13.
5. The appeal was admitted to file on the
following substantial questions of law:-
1. In the teeth of the proviso to Section 34 of the
Specific Relief Act, 1963, is the suit for
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declaration and injunction without a prayer for
recovery of possession maintainable in law?
2. Will not the decree in O.S No.210/2002
operate as res judicata to the plea of possession
made by the plaintiff?
3. Is the court justified in passing a decree for
injunction to act as a cross decree to negate the
injunction passed by a competent court in
another litigation, which has attained finality?
4. Is not the suit hit by the principles of res
judicata, constructive res judicata and estoppel
by judgment in the light of Ext.B1 judgment?
5. Is the plea of non est factum available to be
raised on the facts and in the circumstances of
the case?
6. Is the evidence adduced by the plaintiff
acceptable or relevant in the teeth of Section 92
of the Evidence Act, 1872?
6. The learned Senior Counsel, Shri.P.B.Krishnan,
appearing on behalf of the appellant raised the following
submissions:-
(a) Both the Trial Court as well as the First Appellate
Court were carried away by the fact that the plaintiff was
an aged lady of 85 years old. When a plea regarding the
misrepresentation of the character of a document was
raised before the Trial Court, it was incumbent upon the
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plaintiff, to have adduced sufficient evidence to provethat she was not made aware of the character of the
document.
(b) The plaintiff and her son, examined as PW1 and PW2
were defendants in O.S No.210/2002 on the files of the
Munsiff Court, Ettumanoor and had suffered a decree of
injunction on 07.03.2003. The courts below failed to
consider the effect of judgment and decree in O.S
No.210/2002 and could not have granted a decree of
injunction which would nullify the effect of the earlier
decree.
(c) In the present suit, only a relief of declaration and
consequential injunction was sought for. In a case where
admittedly the defendants 1 and 2 were found to be in
possession of the plaint schedule property, without
seeking for a decree for recovery of possession, the
plaintiff could not have maintained a suit of declaration of
title and that, the said relief is hit by proviso to Section 34
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of the Specific Relief Act, 1963.
(d) Merely because, Exts.B1 and B2 are ex parte
judgment and decree will not denude its efficacy in law.
(e) When a plea of Non est factum was raised by the
plaintiff, burden is heavily on the plaintiff to disprove the
contents of Ext.A4 Sale deed. Ext.A4 being a registered
document, presumption regarding the validity had to be
inferred by the courts below. In support of his
contentions, would rely on the decision in Mathu v.
Cherchi [1990(1) KLT 416].
7. Per contra, Shri.R.S Kalkura, the learned
counsel appearing for respondents 4 and 6 pointed out
that the 2nd defendant / the daughter was in a fiduciary
relationship with the mother. In fact the daughter has
misrepresented the fact regarding the character of the
document and in the guise of executing a mortgage deed,
had got the sale deed executed from the mother. The
daughter being in a dominant position exerted undue
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influence over the mother and the mother was an
illiterate person as the result of which the fraudulent act
was committed by her. It is further pointed out that
during the First Appellate Court stage, the additional
respondent No.8 Shri.V.S Jerard expired and that the
application preferred by the appellant herein to implead
the only legal heir of Jerard was disallowed by the First
Appellate Court. Since the judgment of the First Appellate
Court was rendered with a third person on the party
array, the judgment has no efficacy of law and the appeal
has to be heard afresh.
8. Shri.R.Sunil Kumar, the learned counsel for the
14th respondent, the wife of deceased Jerard would
support the contentions raised by Shri.R.S.Kalkura and
would contend that it was because of the fraudulent act
of the daughter / 2nd defendant, that the plaintiff
happened to execute the Sale Deed. The counsel further
pointed out that the concurrent findings of facts and law
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rendered by the Trial Court as well as the First Appellate
Court need not be interfered by this Court in exercise of
the power under Section 100 of the Code of Civil
Procedure and thus prayed for a dismissal of the appeal.
9. I have considered the rival submissions raised
across the Bar and perused the records and also the
judgments of the courts below.
10. As stated above, one of the prime questions
this court must bestow upon is as regards the
maintainability of the suit. It is the specific case of the
Shri.P.B.Krishnan, the learned Senior Counsel for the
appellant, that a suit for declaration of title without
seeking for a consequential relief in the form of recovery
of possession is not maintainable. Section 34 of the
Specific Reliefs Act, 1963 reads as under:-
34. Discretion of Court as to declaration of
status or right.-Any person entitled to any legal
character, or to any right as to any property, may
institute a suit against any person denying, or
interested to deny, his title to such character or
right, and the Court may in its discretion make
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therein a declaration that he is so entitled, and the
plaintiff need not in such suit ask for any further
relief:
Provided that no Court shall make any such
declaration where the plaintiff, being able to seek
further relief than a mere declaration of title, omits
to do so.
Explanation.-A trustee of property is a “person
interested to deny” a title adverse to the title of
some one who is not in existence, and for whom, if
in existence, he would be a trustee.
11. The proviso to Section 34 of the Specific Reliefs
Act, 1963, specifically makes it clear that no courts shall
make any such declaration where the plaintiff being able
to seek a further relief than a mere declaration of title
omits to do so.
12. In Union of India v. Ibrahim Uddin and
another [2012 KHC 4379] and held as follows:-
43. The Section provides that Courts have
discretion as to declaration of status or right,
however, it carves out an exception that a Court
shall not make any such declaration of status or
right where the complainant, being able to seek
further relief than a mere declaration of title, omits
to do so.
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13. In Vinay Krishna Vs Keshav Chandra [1993
Supplement 3 SCC 129], the Supreme Court held that
plaintiff’s not being in possession of the property in that
case ought to have amended the plaint for the relief of
recovery of possession in view of the bar included by the
proviso.
14. In Vasantha (dead) Thr Lr. V Rajalakshmi @
Rajam(dead) Thr L.R’s (2024)5 SCC 282 the Supreme
Court after considering the catena of precedents on this
point reiterated the position of law as regards the
requirement to seek recovery of possession in a suit for
declaration of title, if the plaintiff is not in possession of
the property at the time of institution of the suit.
15. In the present case, Ext.B1 judgment and
Ext.B2 decree would undoubtedly prove that defendants
1 and 2 are in possession of the plaint schedule property.
Therefore, the plaintiff was aware that she was divested
of the possession at the time when the suit was
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instituted. Therefore, the conscious action of the plaintiff
in not seeking for recovery of possession is detrimental to
the cause. Accordingly, answering the first question of
law , it is held that without seeking for a relief in the form
of recovery of possession, the suit filed by the plaintiff
was not maintainable.
16. The next question to be considered by this
Court is whether the decree in O.S No.210/2002 will
operate as res judicata as regards the possession of the
plaint schedule property by the plaintiff qua the
defendants 1 and 2. Admittedly, plaintiff suffered a
decree in OS No 210 of 2002. It is true that the question
of title was not raised in the earlier suit. But, the
possession of the appellant over the plaint schedule
property on the strength of title was found in favour.
Unless, the plaintiff questions it in an appropriate
proceeding, the present suit cannot be maintained.
However, the trial court on a complete mis-appreciation
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of the facts and law came to the conclusion that, as soon
as the sale deed is set aside in the present suit, the
judgment and decree in O.S No.210/2002 will lose its
efficacy. There is no warrant for such observation
inasmuch the said finding is totally perverse and not
supported by law.
17. In Chandran E.N v. Valsan Matathil [2017
KHC 69], this Court has held that a suit for declaration
and consequential permanent prohibitory injunction is not
maintainable, when an earlier suit for injunction was
decreed. Therefore, irresistibly, it must be held that the
suit is barred by principles of res judicata qua possession
of plaintiff.
18. It must be noted that decree in O.S
No.210/2002 is ex parte. Will that by itself, denude its
efficacy. According to the learned Senior Counsel Shir P.B.
Krishnan mere fact that a decree is obtained exparte will
not by itself denude its efficacy. In support of his
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contention relied on the decision of Supreme Court in
Saroja v. Chinnusamy [dead] LR’s and another
[2007 KHC 3956]. The relevant portion of the judgment of
the Hon’ble Supreme Court reads as under:-
“9…..Once an ex parte decree is passed
against Kuppusamy, in our view, the same
should be taken as a final decision after
hearing. It is well settled that an ex parte
decree is binding as a decree passed after
contest on the person against whom such an
ex parte decree has been passed. It is
equally well settled that an ex parte decree
would be so treated unless the party
challenging the ex parte decree satisfies the
court that such an ex parte decree has been
obtained by fraud. Such being the position,
we are unable to hold that Condition No. (iv)
was not satisfied and accordingly it cannot
be held that the principle of res judicata
would not apply in the present case….”
While holding so, the Hon’ble Supreme Court affirmed the
view of the Madras High Court in Arukkani Ammal v.
Guruswamy,[The law Weekly Vol.100(1987) 707].
Therefore, it is found that, the second question of law
raised in the present appeal is liable to be answered in
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favour of the appellant.
19. The next question to be considered is whether
the decree for declaration and consequential injunction,
would act as a cross decree to negate the injunction
passed by the competent court. It is settled that a decree
passed by a competent civil court can only be set aside in
accordance with the procedure prescribed under Section
96 of the Code of Civil Procedure, depending upon the
peculiar jurisdiction of the court, which passes the decree
or under Section 100 of the Code of Civil Procedure. In
the present case, the decree passed in O.S No.210/2002
was on 07.03.2003. Therefore, when the Additional Sub
Court, Kottayam, took up the present suit (O.S
No.346/2002), the plaintiff was already injuncted from
disturbing the possession of the defendants 1 and 2. The
Trial Court should not have got over the rigour of the
judgment and decree by merely holding that when the
sale deed is set aside, the effect of decree in O.S
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No.210/2002 would cease to have effect. There is no
warrant for the said observation nor the court has
rendered its findings on the basis of any supporting
reasons. Therefore, this Court is of the considered view
that the finding rendered by the Trial Court as regards
the efficacy of Ext.B1 and B2 decree is incorrect.
Consequently, the third question of law framed by this
Court is also answered in favour of the appellant.
20. As regards the next question, whether the
judgment and decree operate as a res judicata as far as
the plaintiff is concerned, in view of the findings rendered
by this Court, as regards the questions of law 2 and 3, it
follows that the fourth question of law is also liable to be
answered in favour of the appellant.
21. A plea of non est factum is raised in the suit by
the plaintiff. However, it must be remembered that the
plaintiff herself had no consistent case. In the proof
affidavit filed in the suit, it is contended by the plaintiff
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that in paragraph 11 and 12 that, the plaintiff went to the
office of the document writer on 25.11.2000 and signed
the document and later from the office of the document
writer she went to the Sub Registrar Office and then
affixed the signature in Ext.A4 sale deed. However,
during her cross examination, she had a different
perspective to the case. The statement in the cross
examination of the plaintiff reads as under:
“25/11/00-08. 25/11/00-ൽ Sub Registrar Office
ൽവെച്ച് ഏതെങ്കിലും പ്രമാണത്തിൽ ഒപ്പിട്ട് കൊടുത്തോ?
ഞാനൊന്നും ഒപ്പിട്ടിട്ടില്ല(A) 25/11/00 ലെ പ്രമാണത്തിൽ Sub
Registrar Office-ൽ വെച്ച് ഒപ്പിട്ടിട്ടുള്ളതായി
സത്യവാങ്മൂലത്തിൽ പറയുന്നല്ലോ? എന്നെ അവരു
കൂട്ടിക്കൊണ്ടുപോയി
OP-4
ഒപ്പിടീച്ചു. വായിച്ചു കേൾപ്പിച്ചില്ല. അല്ലാതെ ഞാൻ പ്രമാണത്തിൽ
ഒപ്പിട്ടില്ല. 50,000/- രൂപയുടെ പ്രമാണത്തിൽ ഒപ്പിട്ടു കൊടുത്തു.
അല്ലാതെ ഒപ്പിട്ടു കൊടുത്തില്ല. അവൾ എന്റെ മകളാണെന്ന് വെച്ച്
അവളുടെ കണ്ണീര് കണ്ടു ഞാൻ ഒപ്പിട്ടു കൊടുത്തു.”
22. Therefore, in the light of the contradictory
statements made by the plaintiff in the chief examination
as well as the cross examination would show that, she
was not able to establish a consistent case. It is in this
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context that the principle of non est factum must be
considered in the present case.
23. The plea of non est factum could be considered
only on a narrow compass. The following precedents are
required to be discussed in order to find out whether the
plea of non est factum can be successfully maintained.
24. In Saunders v. Anglia Building Society
[1970(3) ALL ER 961], the availability of non est factum
was applied in a more strict sense. The following
observations contained in the judgment are useful for the
present case.
“Page No.963…..Scrutinising the document before
signing it was that he was too busy or too lazy. In
general I do not think that he can be heard to say
that he signed in reliance on someone he trusted.
But, particularly when he was led to believe that
the document which he signed was not one which
affected his legal rights, there may be cases where
this plea can properly be applied in favour of a men
of full capacity.”
25. In the present case, the exact plea raised by
the plaintiff is as regards the character of the document.
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According to her, she believed that it is a mortgaged
deed and her daughter had misrepresented her regarding
the character of the document and instead got a sale
deed executed. Whether, such a plea will attract the
principles of non est factum came up for consideration
before this Court in Mathu v. Cherchi [1990(1) KLT
416]. After a close exploration of the case law on the
points, it was held by this court that, a plea of mistake of
fact is peculiar to the law of written contracts due to the
existence of common law defence of non-est-factum,
which permits one who signed the document which is
essentially different from what he intended to sign, to
plead that notwithstanding his signature, it is not a deed
in the contemplation of law.
26. The view expressed in Mathu (supra) was
reiterated in Biji Pothen v. Thankamma John [2012
(3) KLT 658], and in an unreported decision Jose
Mathew vs James Avirah in RSA No.850 of 2015
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( decided on 22-2-2016). Thus, the consistent view of this
Court as regards the misrepresentation of the character
of the document is that, the burden is heavily on the
person who alleges the misrepresentation regarding the
character.
27. It must be remembered that, Ext.A4 is a
registered sale deed. Section 32 of the Registration Act,
1908 deals with the registration of the document. Section
32 reads as under:-
32. Persons to present documents for
registration.- Except in the cases mentioned in
[Sections 31, 88 and 89], every document to be
registered under this Act, whether such registration
be compulsory or optional, shall be presented at
the proper registration office,-
(a) by some person executing or claiming under the
same, or, in the case of a copy of a decree or order,
claiming under the decree or order, or
(b) by the representative or assign of such a
person, or
(c) by the agent of such a person, representative or
assign, duly authorised by power-of-attorney
executed and authenticated in manner hereinafter
mentioned.
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28. When a document is presented for registration,
it is incumbent upon the person who executes the
document to be present in person before the Sub
Registrar and affix his signature. There is a general
presumption regarding the validity of a registered
document. If as a matter of fact, the plaintiff had a case
that the contents of the document were not read over to
her at the time of registration, she could have very well
summoned the concerned Sub Registrar to examine the
said fact. The failure of the plaintiff to examine the Sub
Registrar is fatal to the case of the plaintiff.
29. In Prem Singh v. Birbal [(2006) 5 SCC 353],
the Supreme Court held that, there is a presumption
attached to the registered document as it is one validly
executed. Therefore, prima facie the registered document
would be valid in law and that, the onus of proof would be
on the person who gives the evidence to rebut the
presumption. In the present case, the quality of evidence
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adduced by the plaintiff is insufficient to hold that the
registered sale deed executed in favour of the 2 nd
defendant was vitiated under any circumstance. On the
contrary, the Trial Court only went by the oral testimony
of PW1 to decree the suit. Apart from the oral testimony
of PW1 there is no other evidence to sustain the plea
against the execution of the sale deed. Therefore, this
court finds that the finding rendered by the Trial Court
as well as by the First Appellate Court is completely
perverse warranting interference under Section 100 of
the Code of Civil Procedure.
30. Last question framed by this Court is whether
the evidence adduced by the plaintiff was acceptable in
terms of Section 92 of the Evidence Act. Section 92 of the
Evidence Act reads as under:-
92. Exclusion of evidence of oral agreement
When the terms of any such contract, grant
or other disposition of property, or any matter
required by law to be reduced to the form of a
document, have been proved according to the last
section, no evidence of any oral agreement or
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statement shall be admitted, as between the
parties to any such instrument or their
representatives in interest, for the purpose of
contradicting, varying, adding to or subtracting
from, its terms:
Proviso (1): Any fact may be proved which would
invalidate any document, or which would entitle
any person to any decree or order relating
thereto; such as fraud, intimidation, illegality,
want of due execution, want of capacity in any
contracting party, want or failure] of
consideration, or mistake in fact or law.
Proviso (2): The existence of any separate oral
agreement as to any matter on which a document
is silent, and which is not inconsistent with its
terms, may be proved. In considering whether or
not this proviso applies, the court shall have
regard to the degree of formality of the document.
Proviso (3): The existence of any separate oral
agreement, constituting a condition precedent to
the attaching of any obligation under any such
contract, grant or disposition of property, may be
proved.
Proviso (4): The existence of any distinct
subsequent oral agreement to rescind or modify
any such contract, grant or disposition of property,
may be proved, except in cases in which such
contract, grant or disposition of property is by law
required to be in writing, or has been registered
according to the law in force for the time being as
to the registration of documents.
Proviso (5): Any usage or custom by which
incidents not expressly mentioned in any contract
are usually annexed to contracts of that
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description may be proved:
PROVIDED that the annexing of such incident
would not be repugnant to, or inconsistent with,
the express terms of the contract.
Proviso (6): Any fact may be proved which shows
in what manner the language of a document is
related to existing facts.
31. Going by the aforesaid provision, when terms
of a contract is reduced in writing no evidence of oral or a
statement shall be admitted between the parties as
regards the contents of the documents. Although that, by
itself will not deter the plaintiff from adducing sufficient
evidence to prove the misrepresentation and fraud, this
Court has already concluded that the evidence in this
case is not sufficient to hold that the plaintiff has been
misled as regards the character of the document, it
becomes clear that the evidence of PW1 could not have
been relied on by the trial court since it is against the
provision of Section 92 of the Indian Evidence Act.
Consequently, the above question of law is answered in
favour of the appellant.
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As an upshot of the above discussion, this Court
holds that courts below erred in holding in favour of the
plaintiff. Resultantly, the appellant is entitled to succeed
and the judgment and decree passed by the courts below
are required to be interfered. Accordingly the appeal is
allowed reversing the judgment and decree in A.S
No.297/2006 on the files of the Additional District Court-
IV, Kottayam and O.S No.346/2002 on the files of the
Additional Sub Court, Kottayam and the suit stands
dismissed. No cost.
Sd/-
EASWARAN S.
JUDGE
AMR
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